Opinion
(December Term, 1829.)
Where there are children of the same mother, some born in wedlock and some illegitimate, the former class may inherit from the latter, and the latter may inherit from each other; but the latter cannot inherit from the former, nor can the mother, in any case, inherit from the latter.
From ORANGE. The petition stated that James Flintham died intestate, without leaving any widow, child, or other issue surviving, and possessed of a considerable personal estate, which had come to the hands of the defendant Holder, as his administrator; that the intestate was the illegitimate child of the petitioner Ailsey, and that the petitioners Thomas, Catherine, and Nancy were the brothers and sisters of the intestate; and the petitioners prayed that the defendant might account with them for the personal estate of his intestate.
Gaston for appellants.
Nash in support of the decree.
The answer of Holder averred his readiness to settle with and pay to the parties really entitled, but alleged that he had been advised by counsel that the Trustees of the University, and not the petitioners, were entitled, and prayed that the question of right might be contested between the claimants, and that he might pay under the direction (346) of the Court.
Upon the coming in of Holder's answer, the trustees were made defendants, and insisted that they were entitled, averring that the intestate was a bastard, and therefore the petitioner Ailsey could not take, and denying any knowledge of the relationship to the intestate claimed by the other petitioners.
Upon the hearing before NORWOOD, J., in the court below, it appeared that the intestate was the illegitimate child of the petitioner Ailsey; that he died without wife or issue, and that the other petitioners were the children of the said Ailsey, and born in lawful wedlock; and thereupon his Honor declared that the petitioner Ailsey was not entitled to any part of the intestate's estate; that the trustees did not take the same, but that the brother and sisters of the intestate were entitled thereto, as next of kin and sole distributees, and decreed the same to be paid to them accordingly, from which decree the trustees appealed.
The act of 1799, ch. 522, upon the construction of which the case turned, entitled "An act to make provision for natural born children," is in these words:
"That where any woman shall die intestate, leaving children, commonly called illegitimate or natural, born out of wedlock, and no children born in lawful wedlock, all such estate whereof she shall die seized or possessed of, whether real or personal, shall descend to and be equally divided among such illegitimate or natural born children, and their representatives, in the same manner as if they had been born in wedlock; and if any such illegitimate or natural born child shall (347) die intestate, without leaving any child or children, his or her estate, as well real as personal, shall descend to and be equally divided among his or her brothers and sisters born of the body of the same mother, and their representatives, in the same manner and under the same regulations and restrictions as if they had been born in lawful wedlock; any law, usage, or custom to the contrary, notwithstanding."
This case depends upon the just construction of the act of 1799 (Rev., ch. 522). It is contended for the appellants that the decree is erroneous because the words of the act confine its operation to the single case where there are bastard children of a mother, leaving no children born in lawful wedlock; or, at any rate, that no construction can carry it further than to let in bastards alone to descents from bastards. Certainly, the claim of the University must prevail unless intercepted by a fair construction from the statute, since at common law there is no collateral descent to or from a bastard. It is to be premised, however, that even a refinement would be allowable that led to an heir, and prevented property from being derelict. Our law leans against escheats. Half-blood has been admitted, although there be not a drop of the first purchaser's mingled with it. Parents inherit from children, widows from husbands, bastards from mothers and from each other.
Two cases are expressly embraced in the act; the one descents from the mother, the other descents from the bastard themselves. As to the former, there can be no doubt that the bastard cannot inherit if the mother leave a legitimate child. The words are, where the mother "leaving no children born in lawful wedlock," her estate shall descend to her illegitimate children. The capacity of the bastard to inherit from his mother is, therefore, expressly limited to the single case of the mother's leaving no issue but bastards. We can be at no loss for the reason of this provision. The restriction grew out of the (348) same policy which at common law excluded bastards altogether, namely, an earnest and anxious desire to uphold and encourage the great social compact, marriage. To enforce that policy, our ancestors imposed the rigorous penalty of an escheat rather than admit a bastard to the succession. Our Legislature has yielded something to natural affection, but not so much as to impair the value to the parties, or the public, of that important relation. Bastards are admitted, when there is no legitimate child, because it is of common interest that all children should have a competent maintenance of parental provision; and because there seems a natural right in the child to the fruits of the parent's labors, unless for better ends they can be bestowed on others deemed more worthy. It is still an object, not altogether unattainable, to reform the mother and fit her for the duties of a mother and guardian of her unhappy and degraded offspring. If anything has that tendency, it is marriage. The more prudent, the greater will be the probability of those happy results. To encourage the marriage, and prudent marriage of the mother, and thereby promote the real good of the illegitimate issue themselves, the statute holds out this inducement to a husband, that his children shall succeed to the whole of their mother's estate, in exclusion of others. This part of the act does not directly affect the present question; but it has a material bearing upon it, since it exhibits a decided preference, founded on the clearest and soundest reasons, which have a strong application to the other parts of the act, and enable us the better to discover its spirit. The words ought to be very positive which should exclude the legitimate altogether from succeeding to bastard children, when we find the same act admitting them alone, in exclusion of the bastards, to inherit from the mother.
We come now, however, to consider the act itself, in reference (349) to a descent from a bastard. The provision is, "If any such illegitimate child shall die intestate, without leaving a child, his estate shall descend to and be equally divided among his brethren and sisters, born of the body of the same mother, and their representatives, in the same manner as if they had been born in lawful wedlock." If there be none but bastards, unquestionably they succeed to each other. But if the intestate have two sets of brethren, one legitimate and the other illegitimate, then it is contended neither succeeds, or the bastard only; and if he leave legitimate brethren only, that they are excluded.
The point is not entirely new. It was decided in a case where there were two lines, by the late Supreme Court. Arrington v. Alston, 4 N.C. 727; S. c., 6 N.C. 321. The defendant was held to be both equally. But as the question was not much debated there, the Court is willing to reconsider it.
The general scope of the act is to prevent an escheat in a case where it existed before, namely, upon the death of a bastard intestate and without lineal heirs; and to provide for bastard brethren. But it is argued that the descent between illegitimate brothers and sisters themselves is tied up to the case where there are none but illegitimates. This is founded upon the words "any such," as referring to their legitimate children spoken of in the previous sentence, that is to say, bastards of a mother leaving no legitimate child. It must be admitted that the clause is badly penned. But it may be construed without giving the restrictive and particular meaning to those words or relatives, which shall confine them to the happening of the whole case provided for in the previous clause. "Such" need not be referred at all to the mother. The act does not mean the bastard children of "such" mother, that is, one leaving illegitimate and no legitimate children, but only "such" or "any" (350) illegitimate person. It is the same as if the sentence had been written, "If any illegitimate child shall die," etc. It is but common respect to the Legislature to put such a construction upon the act. Upon what conceivable reason shall the existence of a brother born in wedlock defeat the descent from a bastard to another bastard brother? A motive of policy might, indeed, have induced the Legislature to make the legitimate sole heir to the intestate bastard. But they have not thought proper so to order, and it is to be remembered that this objection cuts off both the lines, upon the ground that the existence of two lines is a casus omissus in the act, and remains as at common law. I cannot think so. If there be none but bastards, the act expressly makes them inherit to each other. Shall that succession be defeated by any other means than a preferable heir? Why should it? Good sense says that the right of a bastard to inherit from a bastard brother shall not be destroyed by the existence of a legitimate brother, unless the latter can himself inherit. If the latter cannot inherit, it is the same as if he were not in being. This was the ground taken by the Court in construing the sixth canon of descents in Bell v. Dozier, 12 N.C. 333. In that case it was held that the mother had an estate for life in land, derived by her son by descent from his father, though the son left a brother, who, being of the maternal half-blood, could not inherit, because there were also paternal uncles and aunts. The mother inherits against the words of the canon, because the intention was to postpone her only in favor of brothers and sisters; and if they cannot take, she shall.
If, then, bastard brothers may inherit to each other, notwithstanding the existence of legitimate brothers, may not the legitimate brothers in such case succeed as coheirs? The opinion of the Court is that they do. It seems to follow necessarily from the act, if the positions already taken be true; for if the act in its true meaning is not confined to the case where there are none but bastards, and illegitimates may be (351) heirs to each other, though there be legitimates, the latter must be also heirs. Wherever one can inherit, the other must. The words are, "be divided among his brothers and sisters born of the body of the same mother." It is true, the object of the Legislature is disclosed in the title to be to provide for bastard children. But that will not restrain the enacting words. They are broad enough to cover all the brethren of both kinds, and there is nothing in the context or reason to limit their sense. It is manifest that the moral and political considerations which exclude bastards from the succession to the mother, when there is legitimate issue, have no force to exclude the legitimate from the succession to a bastard brother. They powerfully apply, indeed, when a bastard shall claim to succeed to a legitimate brother. Accordingly, we find nothing of that sort in the act. There is no provision for a descent from a legitimate to a bastard. The descent from bastards alone is within the purview. Hence, bastards can never inherit but from the mother and from each other. But the reasons on which the legitimates are constituted sole heirs of the mother alike require that they should be coheirs of the bastards. If the Legislature had not thought so, but had intended to confine the descent from bastards to bastards alone, how easy would it have been to say the estate descend "to all his illegitimate brothers and sisters born of the body of the same mother." Instead of that, they say it shall descend to all his maternal brothers and sisters.
It follows that the brethren born in wedlock succeed to a bastard brother in like manner, when that line exists by itself and there is no surviving bastard brother or sister.
The act is limited to descents between the brethren. It does not let the parents in at all. The decree was consequently right in excluding the mother.
The decree is therefore affirmed, with costs in this Court to be (352) paid by the appellants. And as the whole case is not here, because the University alone appeared, this decree must be certified to the Superior Court of Orange, with instructions to proceed in the execution of the decree of that court as between the other parties.
PER CURIAM. Affirmed. Cited: Sawyer v. Sawyer, 28 N.C. 408, 412; McBryde v. Patterson, 78 N.C. 414; Powers v. Kite, 83 N.C. 157; Bettis v. Avery, 140 N.C. 188; University v. Markham, 174 N.C. 342.